(a) Violation
Classification and Penalties. - The Department of Health and Human Services
shall impose an administrative penalty in accordance with provisions of this
Article on any facility licensed under this Article which is found to be in
violation of Article 2 or 3 of this Chapter or applicable State and federal
laws and regulations. Citations for violations shall be classified and
penalties assessed according to the nature of the violation as follows:

(1) "Type A1
Violation" means a violation by a facility of the regulations, standards,
and requirements set forth in Article 2 or 3 of this Chapter or applicable
State or federal laws and regulations governing the licensure or certification
of a facility which results in death or serious physical harm, abuse, neglect,
or exploitation. The person making the findings shall do the following:

a. Orally and
immediately inform the facility of the Type A1 Violation and the specific
findings.

a1. Require a written plan
of protection regarding how the facility will immediately abate the Type A1
Violation in order to protect clients from further risk or additional harm.

b. Within 15
working days of the investigation, send a report of the findings to the
facility.

c. Require a
plan of correction to be submitted to the Department, based on a written report
of the findings, that describes steps the facility will take to achieve and
maintain compliance.

The Department shall impose a civil
penalty in an amount not less than five hundred dollars ($500.00) nor more than
ten thousand dollars ($10,000) for each Type Al Violation in facilities or
programs that serve six or fewer persons. The Department shall impose a civil
penalty in an amount not less than one thousand dollars ($1,000) nor more than
twenty thousand dollars ($20,000) for each Type A1 Violation in facilities or
programs that serve seven or more persons. Where a facility has failed to
correct a Type A1 Violation, the Department shall access the facility a civil
penalty in the amount of up to one thousand dollars ($1,000) for each day that
the violation continues beyond the time specified for correction. The
Department or its authorized representative shall determine whether the violation
has been corrected.

(1a) "Type A2
Violation" means a violation by a facility of the regulations, standards,
and requirements set forth in Article 2 or 3 of this Chapter or applicable
State or federal laws and regulations governing the licensure or certification
of a facility which results in substantial risk that death or serious physical
harm, abuse, neglect, or exploitation will occur. The person making the
findings shall do the following:

a. Orally and
immediately inform the facility of the Type A2 Violation and the specific
findings.

b. Require a
written plan of protection regarding how the facility will immediately abate
the Type A2 Violation in order to protect clients or residents from further
risk or additional harm.

c. Within 15
working days of the investigation, send a report of the findings to the
facility.

d. Require a
plan of correction to be submitted to the Department, based on the written
report of the findings, that describes steps the facility will take to achieve
and maintain compliance.

The violation or violations shall be
corrected within the time specified for correction by the Department or its
authorized representative. The Department may or may not assess a penalty
taking into consideration the compliance history, preventative measures, and
response to previous violations by the facility. Where a facility has failed to
correct a Type A2 Violation, the Department shall assess the facility a civil
penalty in the amount of up to one thousand dollars ($1,000) for each day that
the deficiency continues beyond the time specified for correction by the
Department or its authorized representative. The Department or its authorized
representative shall determine whether the violation has been corrected.

(1b) "Past Corrected Type
A1 or Type A2 Violation" means either (i) the violation was not previously
identified by the Department or its authorized representative or (ii) the
violation was discovered by the facility and was self-reported, but in either
case the violation has been corrected. In determining whether a penalty should
be assessed under this section, the Department shall consider the following
factors:

d. Whether the
facility's system to ensure compliance is maintained and continues to be
implemented.

e. Whether the
regulatory area remains in compliance.

(2) "Type B
Violation" means a violation by a facility of the regulations, standards,
and requirements set forth in Article 2 or 3 of this Chapter or applicable
State or federal laws and regulations governing the licensure or certification
of a facility which is detrimental to the health, safety, or welfare of any
client or patient, but which does not result in substantial risk that death or
serious physical harm, abuse, neglect, or exploitation will occur. The person
making the findings shall do the following:

a. Orally and
immediately inform the facility of the Type B Violation and the specific
findings.

b. Require a
written plan of protection regarding how the facility will immediately abate
the Type B Violation in order to protect clients or residents from further risk
or additional harm.

c. Within 15
working days of the investigation, send a report of the findings to the
facility.

d. Require a
plan of correction to be submitted to the Department, based on the written
report of the findings, that describes steps the facility will take to achieve
and maintain compliance.

Where a facility has failed to correct
a Type B Violation within the time specified for correction by the Department
or its authorized representative, the Department shall assess the facility a
civil penalty in the amount of up to four hundred dollars ($400.00) for each
day that the violation continues beyond the date specified for correction
without just reason for the failure. The Department or its authorized
representative shall ensure that the violation has been corrected.

(3) Repeat
Violations. - The Department shall impose a civil penalty which is treble the
amount assessed under this subsection when a facility under the same management
or ownership has received a citation during the previous 12 months for which
the appeal rights are exhausted and penalty payment is expected or has
occurred, and the current violation is for the same specific provision of a
statute or regulation for which it received a violation during the previous 12
months.

(b) Repealed by
Session Laws 2011-249, s. 1, effective June 23, 2011.

(c) Factors to Be
Considered in Determining Amount of Initial Penalty. - In determining the
amount of the initial penalty to be imposed under this section, the Department
shall consider the following factors:

(1) There is
substantial risk that serious physical harm, abuse, neglect, or exploitation
will occur, and this has not been corrected within the time specified by the
Department or its authorized representative;

(3b) A client died and there is
substantial risk to others for serious physical harm, abuse, neglect, or
exploitation;

(3c) A client died and there is
substantial risk for further client death;

(4) The reasonable
diligence exercised by the licensee to comply with G.S. 131E-256 and other
applicable State and federal laws and regulations;

(5) Efforts by the
licensee to correct violations;

(6) The number and
type of previous violations committed by the licensee within the past 36
months; and

(7) Repealed by
Session Laws 2011-249, s. 1, effective June 23, 2011.

(8) The number of
clients or patients put at risk by the violation.

(d) The facts found to
support the factors in subsection (c) of this section shall be the basis in
determining the amount of the penalty. The Department shall document the findings
in written record and shall make the written record available to all affected
parties including:

(1) The licensee
involved;

(2) The clients or
patients affected; and

(3) The family
members or guardians of the clients or patients affected.

(e) The Department
shall impose a civil penalty of fifty dollars ($50.00) per day on any facility
which refuses to allow an authorized representative of the Department to
inspect the premises and records of the facility.

(f) Any facility
wishing to contest a penalty shall be entitled to an administrative hearing as
provided in Chapter 150B of the General Statutes. A petition for a contested
case shall be filed within 30 days after the Department mails a notice of
penalty to a licensee. At least the following specific issues shall be
addressed at the administrative hearing:

(1) The
reasonableness of the amount of any civil penalty assessed, and

(2) The degree to
which each factor has been evaluated pursuant to subsection (c) of this section
to be considered in determining the amount of an initial penalty.

If a civil penalty is found to be unreasonable or if the
evaluation of each factor is found to be incomplete, the hearing officer may
recommend that the penalty be adjusted accordingly.

(g) Any penalty
imposed by the Department of Health and Human Services under this section shall
commence on the date of the letter of notification of the penalty amount.

(h) The Secretary
may bring a civil action in the superior court of the county wherein the
violation occurred to recover the amount of the administrative penalty whenever
a facility:

(1) Which has not
requested an administrative hearing fails to pay the penalty within 60 days
after being notified of the penalty, or

(2) Which has
requested an administrative hearing fails to pay the penalty within 60 days
after receipt of a written copy of the decision as provided in G.S. 150B-37.

(i) In lieu
of assessing all or some of the administrative penalty, the Secretary may order
a facility to provide staff training if the training is:

(1) Specific to the
violation;

(2) Approved by the
Department of Health and Human Services; and

(3) Taught by
someone approved by the Department.

(j) The clear
proceeds of civil penalties provided for in this section shall be remitted to
the State Treasurer for deposit in accordance with State law.

(k) In considering
renewal of a license, the Department shall not renew a license if outstanding
fines and penalties imposed by the Department against the facility or program
have not been paid. Fines and penalties for which an appeal is pending are
exempt from consideration for nonrenewal under this subsection. (2000-55, s. 4; 2005-276, ss. 10.40A(e), 10.40A(f);
2011-249, s. 1; 2011-398, s. 39.)